Kresin v. Mau

15 Minn. 116, 1870 Minn. LEXIS 13

Opinion

Berry J.

By the Court. The plaintiff is owner in fee of the east fourth of the south-east quarter of section 32, T. 116, R. 25, and has a portion of the same under cultivation. He has never resided on said tract, nor at any time had any dwelling of other building thereon, but resides upon the south-west quarter of the north-west quarter of section thirty-three, in said town and range. The relative position of the two parcels is shown by the following diagram :

The only question in the case is, whether the plaintiff is entitled to claim the tract first described as a homestead exempt from sale on execution. A homestead, as the word was used in the statute prior to the act of 1860, found on page 199, Gen. Stat., has been defined by this court to be the place of residence or dwelling of its owner. Kelly vs. Baker, 10 Minn., 156, and cases cited. The act of 1860 provided that, “the owner of a homestead under the laws of this state may remove therefrom, * * * and such removal * * * shall not render such homestead liable or subject to forced sale on execution. ” It is contended that the act of 1860, permits thé owner of land to hold it exempt as a homestead without ever having resided upon it. But the phraseology of the act excludes this construction. The words “the owner of a homestead under the laws of this state may remove therefrom, ” can only apply to a person who has dwelt upon the homestead. In order then to sustain the claim of the owner of land to hold the same as a homestead exempt from forced sale, his residence or dwelling-must be, or must have been, situated thereon. As will appear from the diagram above, the plaintiff’s dwelling was situated upon a tract of land which cornered upon the land in controversy, but did not otherwise adjoin it. Then the inquiry is, whether the two tracts can be regarded as one body of land, so that a residence upon one, could be treated as residence upon both. This question must, we think, be answered in the negative. Two tracts of land mutually touching only at a common corner — a mere point — cannot, according to any ordinary or authorized use of language, be spoken of as constituting one body or tract of land. We are therefore of opinion that the tract in controversy cannot be held to be the plaintiff’s homestead.

See Banker vs. Locke, 15 Wis., 635; see also Lester's-Land Laws, 360, as to the analogous construction which has been put upon acts of Congress relating to the entry of public lands. Judgment affirmed.